EXHIBIT 2.3
-----------
STOCK EXCHANGE AGREEMENT
BY AND AMONG
WBNI, Inc.
TRANSL Holdings, Inc.
the Stockholders of. TRANSL Holdings, Inc.
and
Halter Financial Group, Inc.
* * * * *
October 29, 2001
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement dated as of October 29, 2001 (this
"Agreement") is made and entered into by and among WBNI. Inc.. a Delaware
corporation ( "WBNI"). TRANSL Holdings, Inc., a Delaware corporation
("Holdings"), each of the stockholders of Holdings as identified on Schedule
"A" hereto (collectively. the "Stockholders") and Halter Financial Group. Inc.,
a Texas corporation ("HFG").
WHEREAS, the Stockholders are the owners of 100 shares (the "Holdings
Shares") of the common capital stock of Holdings, which represent all said
entities issued and outstanding common capital stock. and each desires to
participate in the proposed stock exchange transaction (the "Exchange") as
provided for herein:
WHEREAS, the respective Boards of Directors of WBNI and Holdings have
adopted resolutions approving and adopting the proposed Exchange upon the terms
and conditions hereinafter set forth in this Agreement.
WHEREAS, the Stockholders of WBNI have approved the Exchange by
consent in lieu of special meeting, dated as of even date herewith; and
WHEREAS, HFG agrees to be a party to this Agreement as a result of
the duties and obligations imposed upon it pursuant to the provisions of Section
4.1 of this Agreement.
NOW, THEREFORE. the parties hereto intending to be legally bound,
agree as follows:
ARTICLE 1
THE EXCHANGE
1.1 THE EXCHANGE. Upon the terms and subject to the conditions
hereof, at the Closing (as hereinafter defined) the Stockholders will sell,
convey, assign, transfer and deliver to WBNI stock certificates, duly endorsed,
representing the Holdings Shares, and WBNI will issue to the Stockholders, in
exchange for the Holdings Shares, stock certificates representing an aggregate
of 5,982,680 shares of its common stock (the "WBNI Shares"), all as more
specifically set forth on Schedule "A" hereto. The WBNI Shares shall represent
92% of the total issued and outstanding shares of WBNI's common capital stock
immediately subsequent to the Exchange.
1.2 CLOSING. The closing of the Exchange (the "Closing") shall take
place upon the execution of this Agreement. Such date is herein referred to as
the "Closing Date."
1
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
AND THE STOCKHOLDERS
Holdings and the Stockholders hereby jointly and severally represent
and warrant to WBNI as follows:
2.1 ORGANIZATION. Holdings has been duly incorporated, validly exists
as a corporation and is in good standing under the laws of it state of
incorporation, and has the requisite corporate power to carry on its business as
now conducted.
2.2 CAPITALIZATION. The authorized capital stock of Holdings consists
of 200 shares of common stock, $.01 par value, of which 100 shares are issued
and outstanding, and no shares of preferred stock. All of the issued and
outstanding shares of common stock are duly authorized, validly issued, fully
paid, non-assessable and free of preemptive rights. There are no outstanding or
authorized options, rights, warrants, calls, convertible securities, rights to
subscribe, conversion rights or other agreements or commitments to which
Holdings is a party or which are binding upon Holdings providing for the
issuance or transfer by Holdings of additional shares of its capital stock and
Holdings has not reserved any shares of its capital stock for issuance, nor are
there any outstanding stock option rights, phantom equity or similar rights,
contracts, arrangements or commitments. There is no voting trusts or any other
agreements or understandings with respect to the voting of Holdings' capital
stock.
2.3 CERTAIN CORPORATE MATTERS. Holdings is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the ownership of its properties, the employment of its personnel or the
conduct of its business requires it to be so qualified, except where such
failure would not have a material adverse effect on Holdings' financial
condition, results of operations or business. Holdings has full corporate power
and authority and all authorizations, licenses and permits necessary to carry on
the business in which it is engaged and to own and use the properties owned and
used by it. Holdings is the sole stockholder of Trans-Logistics, Inc., a Florida
corporation ("Trans-Logistics").
2.4 AUTHORITY RELATIVE TO THIS AGREEMENT Each of Holdings and the
Stockholders has the requisite corporate power and authority to enter into this
Agreement and to carry out their obligations hereunder. The execution , delivery
and performance of this Agreement by Holdings and the Stockholders and the
consummation by Holdings and the Stockholders of the transactions contemplated
hereby have been duly authorized by the Board of Directors of Holdings and no
other actions on the part of either Holdings or the Stockholders are necessary
to authorize this Agreement or the transactions contemplated hereby: This
Agreement has been duly and validly executed and delivered by Holdings and the
Stockholders and constitutes a valid and binding agreement of both Holdings and
the Stockholders, enforceable against both Holdings and the Stockholders in
accordance with its terms, except as such enforcement may be limited by
bankruptcy. insolvency or other similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity.
2
2.5 CONSENTS AND APPROVALS; NO VIOLATIONS. No filing with, and no
permit authorization, consent or approval of any third party, public body or
authority is necessary for the consummation by Holdings or the Stockholders of
the transactions contemplated by this Agreement. Neither the execution and
delivery of this Agreement by Holdings and the Stockholders nor the consummation
by Holdings and the Stockholders of the transactions contemplated hereby, nor
compliance by Holdings and the Stockholders with any of the provisions hereof,
will (a) conflict with or results in any breach of any provisions of the Charter
or Bylaws of Holdings, (b) results in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any notes, bond mortgage, indenture, license,
contract, agreement or other instrument or obligation to which Holdings or the
Stockholders is a party or by which either of them or their properties or assets
may be bound or (c) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Holdings or the Stockholders, or any of their
properties or assets, except in the case of clauses (b) and (c) for violations,
breaches or defaults which are not in the aggregate material taken as a whole.
2.6 OWNERSHIP OF THE HOLDINGS SHARES. The Stockholders own,
beneficially and of record, good and marketable title to the Holdings Shares.
Free and clear of all security interests, liens, adverse claims, encumbrances,
equities, Proxies, options or stockholders' agreements. At the Closing, the
Stockholders will convey to WBNI good and marketable title to the Holdings
Shares, free and clear of any security interests, liens, adverse claims,
encumbrances, equities, proxies, options, stockholders' agreements or
restrictions.
2.7 DISCLOSURE OF INFORMATION. The Stockholders acknowledge that they
have been furnished such information regarding the management, financial
condition, results of operations and business of WBNI necessary to make an
informed decision regarding the Exchange. The Stockholders have had an
opportunity to ask questions and receive answers regarding WBNI and its
financial condition, results or operations or business and the terms and
conditions of the Exchange.
2.8 INVESTMENT EXPERIENCE. The Stockholders acknowledge that they are
able to fend for themselves, can bear the economic risk of their investment in
the WBNI Shares and have such knowledge and experience in financial and business
matters that they are capable of evaluating the merits and risks of an
investment in the WBNI Shares. The Stockholders are acquiring the WBNI Shares
for their own account, for investment purposes only and not with a view to
further distribution thereof.
2.9 RESTRICTED SECURITIES. The Stockholders acknowledge that the WBNI
Shares will not be registered pursuant to the Securities Act of 1933, as amended
(the "Securities Act") or any applicable state securities laws that the WBNI
Shares wi11 be characterized as "restricted securities" under federal securities
laws, and that under such laws and applicable regulations the WBNI Shares cannot
be sold or otherwise disposed of without registration under the Securities Act
or an exemption therefrom. In this regard, the Stockholders are familiar with
Rule 144 promulgated under
3
Securities Act, as currently in effect, and understand the resale limitations
imposed thereby and by the Securities Act. Stop transfer instructions may be
issued to the transfer agent (or a notation may be made in the appropriate
records of the Company) in connection with the WBNI Shares.
2.10 LEGEND. The Stockholders acknowledge that the certificates
representing the WBNI Shares shall each conspicuously set forth on the face or
back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REIGSTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF WBNI
WBNI hereby represents and warrants to Holdings and the Stockholders
as follows:
3.1 ORGANIZATION. WBNI is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware, its state
of incorporation, and has the requisite corporate power to carry on its business
as now conducted.
3.2 CAPITALIZATION. WBNI authorized capital stock consists of
40,000,000 shares of common stock, of which 520,233 shares are issued and
outstanding and 10,000,000 shares of preferred stock, par value $.001 per share,
of which none are presently issued and outstanding. All issued and outstanding
shares of common stock are duly authorized, validly issued, fully paid,
non-assessable and free or preemptive rights. Attached hereto as Schedule 3.2 is
a stockholders list prepared by WBNI's transfer agent dated March 23, 2001. When
issued, the WBNI Shares will be duly authorized, validly issued, fully paid,
non-assessable and free of preemptive rights, there are no outstanding or
authorized options, rights, warrants, calls, convertible securities, rights to
subscribe, conversion rights or other agreements or commitments to which WNBI is
a party or which are binding upon WBNI providing for the issuance by WBNI or
transfer by WBNI of additional shares of WBNI capital stock and WBNI has not
reserved any shares of its capital stock for issuance, nor are there any
outstanding stock option rights, phantom equity or similar rights, contracts,
arrangements or commitments. There is no voting trusts or any other agreements
or understandings with respect to the voting of WBNI capital stock.
3.3 CERTAIN CORPORATE MATTERS. WBNI is duly licensed or qualified to
do business and is in good standing as a foreign corporation in every
jurisdiction in which the character of WNBI' properties or nature of WBNI'
business requires it to be so licensed or qualified other than such
jurisdictions in which the failure to be so licensed or qualified does not, or
insofar as can reasonably
4
be foreseen, in the future will not, have a material adverse effect
on its financial condition, results of operations or business. WBNI
has full corporate power and authority and all authorizations,
licenses and permits necessary to carry on the business in which it
is engaged or in which it proposes presently to engage and to own and
use the properties owned and used by it. WBNI has delivered to
Holdings true, accurate and complete copies of its Certificate of
Incorporation and Bylaws, which reflect all restatements of and
amendments made thereto at any time prior to the date of this
Agreement. The records of meetings of the stockholders and Board of
Directors of WBNI are complete and correct in all material respects.
The stock records of WBNI and the stockholder list of WBNI that WBNI
has previously furnished to Holdings are complete and correct in all
material respects and accurately reflect the record ownership and
beneficial ownership of all the outstanding shares of WBNI' capital
stock and any other outstanding securities issued by WBNI. WBNI is
not in default under or in violation of any provision of its
Certificate of Incorporation or Bylaws in any material respect. WBNI
is not in any default or in violation of any restriction, lien,
encumbrance, indenture, contract, lease, sublease, loan agreement,
note or other obligation or liability by which it is bound or to
which any or its assets is subject.
3.4 AUTHORITY RELATIVE TO THIS AGREEMENT. WBNI has the requisite
corporate power and authority to enter into this Agreement and carry out its
obligations hereunder. The execution, delivery and performance of this Agreement
by WBNI and the consummation of the transactions contemplated hereby have been
duly authorized by the Board of Directors of WBNI and no other actions on the
part of WBNI are necessary to authorize this Agreement or the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by WBNI and constitutes a valid and binding obligation of WBNI,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally or by general principles of equity.
3.5 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for applicable
requirements of federal securities laws and state securities or blue-sky laws,
no filing with, and no permit, authorization, consent or approval of, any third
party, public body or authority is necessary for the consummation by WBNI of the
transactions contemplated by this Agreement. Neither the execution and delivery
of this Agreement by WBNI nor the consummation by WBNI of the transactions
contemplated hereby, nor compliance by WBNI with any of the provisions hereof,
will (a) conflict with or result in any breach of any provisions of the Charter
or Bylaws of WBNI, (b) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation to which WBNI is a party
or by which it or any of its properties or assets may be bound or (c) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
WBNI, or any of its properties or assets, except in the case of clauses (b) and
(c) for violations, breaches or defaults which are not in the aggregate material
to WBNI taken as a whole.
3.6 SUBSIDIARIES. WBNI does not own, directly or directly, any of the
capital stock of any other corporation or any equity, profit sharing,
participation or other interest in any corporation, partnership, joint venture
or other entity.
5
3.7 EVENTS SUBSEQUENT TO DECEMBER 31, 2000. Since December 31, 2000,
there has not been:
(a) Any sale, lease, transfer, license or assignment of any assets,
tangible or intangible, of WBNI:
(b) Any damage, destruction or property loss, whether or not covered
by insurance, affecting adversely the properties or business of WBNI;
(c) Any declaration of setting aside or payment of any dividend or
distribution with respect to the shares of capital stock of WBNI or
any redemption, purchase or other acquisition of any such shares.
(d) Any subjection to any lien on any of the assets, tangible or
intangible, of WBNI;
(e) Any incurrence of indebtedness or liability or assumption of
obligations by WBNI;
(f) Any waiver or release by WBNI of any right of any material value;
(g) Any compensation or benefits paid to officers or directors of
WBNI
(h) Any change made or authorized in the Certificate of Incorporation
or Bylaws of WBNI; or
(i) Any loan to or other transaction with any officer, director or
stockholder of WBNI giving rise to any claim or right or WBNI against
any such person or of such person against WBNI.
3.8 UNDISCLOSED LIABILITIES: Except as otherwise disclosed under this
Agreement and as reflected in WBNI audited financial statements for the fiscal
year ended December 31, 2000, WBNI has no material liability or obligation
whatsoever, either direct or indirect, matured or unmatured, accrued, absolute,
contingent or otherwise. There is no basis unknown to WBNI for assertion against
WBNI of any such liability, obligation or commitment.
3.9 TAX MATTERS.
(a) WBNI has (and as of the Closing Date will have) duly filed all
material federal, state, local and foreign tax returns required to be
filed by or with respect to it with the Internal Revenue Service or
other applicable taxing authority, and no extensions with respect to
such tax returns have (or as of the Closing Date will have) been
requested or granted;;
(b) WBNI has paid, or adequately reserved against all material taxes
due, or claimed by any taxing authority to be due, from or with
respect to it;
6
(c) To the best knowledge of WBNI, there has been no material issue
raised or material adjustment proposed (and none is pending) by the
Internal Revenue Service or any other taxing authority in connection
with any of the tax returns:
(d) No waiver or extension of any statute of limitations as to any
material federal. state. local or foreign tax matter has been given
by or requested from WBNI; and
(e) WBNI has not filed a consent under Section 341 (f) of the
Internal Revenue Code of 1986, as amended.
For the purposes of this SECTION 3.9. a tax is due, (and must
therefore either be paid or adequately reserved against) only on the last date
payment of such tax can be made without interest or penalties, whether such
payment is due in respect of estimated taxes, withholding taxes, required tax
credits or any other tax.
3.10 REAL PROPERTY. WBNI does not own or lease any real property.
3 .11 BOOKS AND RECORDS. The books and records of WBNI fairly reflect
the transactions to which WBNI is a party or by which its properties are bound.
3.12 QUESTIONABLE PAYMENTS. Neither WBNI nor any employee, agent or
representative of it has, directly or indirectly, made any bribes, kickbacks,
illegal payments or illegal political contributions using WBNI' funds or made
any payments from WBNI' funds to governmental official for improper purposes or
made any illegal payments from WBNI' funds to obtain or retain business.
3.13 ENVIRONMENTAL MATTERS.
(a) Definitions. For the purpose of this Agreement, the following
terms shall have the meaning herein specified:
(i) "Governmental Authority" shall mean the United States, each
state, each county, each city and each other political subdivision in
\\hich WBNI' business is located, and any court, political
subdivision, agency or instrumentality with jurisdiction over WBNI'
business.
(ii) "Environmental Laws" shall mean (A) the Comprehensive
Environmental Response. Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986.
42 U.S.C.A. 9601 et seq. ("CERCLA"). (B) the Resource Conservation
and Recovery Act, as amended by the Hazardous and Solid Waste
Amendment of 1984,. 42 U.S.C.A. 6901 et seq. ("RCRA"). (C) the Clean
Air Act, 42 U.S.C.A. 7401 et seq.. (D) the Federal Water Pollution
Control Act, as amended, 33 U.S.C.A. 1251 et seq., (E) the Toxic
Substances Control Act. 15 U.S.C.A. 2601 et seq., (F) a!1 applicable
state laws, and ;
7
(G) all other laws and ordinances relating to municipal waste, solid
waste, air pollution, water pollution and/or the handling, discharge,
disposal or recovery of on-site or off-site hazardous substances or
materials, as each of the foregoing has been or may hereafter be
amended from time to time.
(iii) "Hazardous Materials" shall mean, among others, (A) any
"hazardous waste" as defined by RCRA, and regulations promulgated
thereunder; (B) any "hazardous substance" as defined by CERCLA,
and regulations promulgated hereunder; (C) any "toxic pollutant"
as defined in the Federal Water Pollution Prevention and Control
Act, as amended, 33 U.S.C. 1251 et seq., (commonly known as "CWA"
for "Clean Water Act"), and any regulations thereunder; (D) any
"hazardous air pollutant" as defined in the Air Pollution
Prevention and Control Act, as amended, 42 U.S.C. 7401 et seq.
(commonly known as "CAA" for "Clean Air Act") and any regulations
thereunder; (E) asbestos; (F) polychlorinated biphenyls; (G) any
substance the presence of which on the Business Location (as
hereinafter defined) is prohibited by any Environmental Laws; and
(H) any other substance which is regulated by any Environmental
Laws.
(iv) "Hazardous Materials Contamination" shall mean the presence
of Hazardous Materials in the soil, groundwater, air or any other
media regulated by the Environmental Laws on, under or around
WBNI' facilities at levels or concentration which trigger any
requirement under the Environmental Laws to remove, remediate,
mitigate, xxxxx or otherwise reduce the level or concentration of
the Hazardous Materials. The term "Hazardous Materials
Contamination" does not include the presence of Hazardous
Materials in process tanks, lines, storage or reactor vessels,
delivery trucks or any other equipment or containers, which
Hazardous Materials are used in the manufacture, processing
distribution, use, storage, sale, handling, transportation,
recycling, reuse or disposal of the products that were
manufactured and/or distributed by WBNI.
(b) REPRESENTATIONS AND WARRANTIES. Based on the foregoing, WBNI
represents and warrants that:
(i) To the best knowledge of WBNI, there has been no material
failure by WBNI to comply with all applicable requirements of
Environmental Laws relating to WBNI, WBNI' operations. and WBNI'
manufacture, processing, distribution, use, treatment generation,
recycling, reuses, sale, storage, handling, transportation or
disposal of any Hazardous Material and WBNI is not aware of any
facts or circumstances which could materially impair such
compliance with all applicable Environmental Laws.
(ii) WBNI has not, through the Closing Date, received notice from
any Governmental Authority or any other person of any actual or
alleged violation of any Environmental Laws, nor is any such
notice anticipated.
8
(iii) To the best knowledge of WBNI, Environmental Laws do not
require that any permits, licenses or similar authorizations to
construct, occupy or operate any equipment or facilities used in
the conduct of WBNI' business.
(iv) No Hazardous Materials are now located at the Business
Location, and to the best knowledge of WBNI, WBNI has not ever
caused or permitted any Hazardous Materials to be generated,
placed, stored, held, handled, located or used at the Business
Location, except those which may lawfully be used, transported,
stored, held, handled, generated or placed at the Business
Location in the conduct of WBNI' business.
(v) WBNI has not received any notices, whether from a
Governmental Authority or some other third party that Hazardous
Material Contamination exists at the Business Location or at any
other location utilized by WBNI in the conduct of its business
nor is WBNI aware of any circumstances that would give rise to an
allegation of such contamination.
(vi) To the best knowledge of WBNI, no investigation,
administrative order, consent order or agreement litigation or
settlement with respect to Hazardous Materials or Hazardous
Materials Contamination is proposed, threatened, anticipated,
pending or otherwise in existence with respect to the Business
Location or with respect to any other site controlled or utilized
by WBNI in the operation of its business. To the best knowledge
of WBNI. the Business Location is not currently on, and has never
been on, any federal or state "Superfund" or "Superlien" list.
3.14 INTELLECTUAL PROPERTY. WBNI does not own o ruse any trademarks,
trade names, service marks, patents, copyrights or any applications with respect
thereto. WBNI has not knowledge of any claim that, or inquiry as to whether, any
product, activity or operation of WBNI infringes upon or involves, or has
resulted in the infringement of, any trademarks, trade-names, service marks,
patents, copyrights or other proprietary rights of any other person, corporation
or other entity; and no proceedings have been instituted, are pending or are
threatened.
3.15 INSURANCE. WBNI has no insurance policies in effect.
3.16 CONTRACTS. WBNI has no material contracts, leases, arrangements
and commitments (whether oral or written). WBNI is not a party to or bound by or
affected by any contract, lease, arrangement or commitment (whether oral or
written) relating to: (a) the employment of any person; (b) collective
bargaining with, or any representation of any employees by, any labor union or
association; (c) the acquisition of services, supplies, equipment or other
personal property; (d) the purchase or sale of real property; (e) distribution,
agency or construction; (f) lease of real or personal property as lessor or
lessee or sublessor or sublessee; (g) lending or advancing of funds; (h)
borrowing of funds or receipt of credit; (i) incurring any obligation or
liability; or (j) the sale of personal property.
9
3.17 LITIGATION. WBNI is not subject to any judgment or order of any
court or quasijudicial or administrative agency of any jurisdiction, domestic or
foreign, nor is there any charge, complaint, lawsuit or governmental
investigation pending against WBNI. WBNI is not a plaintiff in any action,
domestic or foreign, judicial or administrative. There are no existing actions,
suites, proceedings or investigations. There are no unsatisfied judgments,
orders, decrees or stipulations affecting WBNI or to which WBNI is a party.
3.18 EMPLOYEES Except for Xxxxxx Xxxxxx, WBNI's sole officer and
director, WBNI does not have any employees. WBNI does not owe any compensation
of any kind, deferred or otherwise, to any current or previous employees. WBNI
has not written or oral employment agreements with any officer or director of
WBNI. WBNI is not a party to or bound by any collective bargaining agreement.
There are no loans or other obligations payable or owing by WBNI to any
stockholder, officer, director or employee of WBNI, nor are there any loans or
debts payable or owing by any of such persons to WBNI or any guarantees by WBNI
of any loan or obligation of any nature to which any such person is a party.
3.19 EMPLOYEE BENEFIT PLANS. WBNI has no (a) non-qualified deferred
or incentive compensation or retirements plans or arrangements, (b) qualified
retirement plans or arrangements, (c) other employee compensation, severance or
termination pay or welfare benefit plans, programs or arrangements or (d) any
related trusts, insurance contracts or other funding arrangements maintained,
established or contributed to by WBNI.
3.20 LEGAL COMPLIANCE. To the best knowledge of WBNI, no claim has
been filed against WBNI alleging a violation of any applicable laws and
regulations of foreign, federal, state and local governments and all agencies
thereof. WBNI holds all of the material permits, licenses, certificates or other
authorizations of foreign, federal, state or local governmental agencies
required for the conduct of its business as presently conducted.
3.21 BROKER'S FEES. Neither WBNI, nor anyone on its behalf has any
liability to any broker, finder, investment banker or agent, or has agreed to
pay any brokerage fees, finder's fees or commissions, or to reimburse any
expenses of any broker, finder, investment banker or agent in connection with
this Agreement .
3.22 DISCLOSURE. The representations and warranties and statements of
fact made by WBNI in this Agreement are, as applicable, accurate, correct and
complete and do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained herein not false or misleading
3.23 INSOLVENCY WBNI is able to pay its debts as they mature and the
transfer of the WBNI Shares (and the transactions contemplated hereby) by WBNI,
in accordance with the terms of this Agreement, shall not constitute a voidable
preference or transfer in fraud by any creditor of WBNI under applicable federal
or state insolvency law.
10
3.24 BANKRUPTCY. WBNI has paid all claims required to be paid
pursuant to the Amended Joint Plan of Reorganization confirmed on April 22, 1999
(the "Plan") to which WBNI was once a party, including without limitation. all
claims, entitled to administrative expense priority pursuant to Section S04(b)
of Title 11 of the United States Bankruptcy Code. WBNI has no liability or
obligation under the Plan. WBNI is under no obligation to obtain court approval
of this Agreement and the transactions contemplated hereunder. The transfer of
the WBNI Shares as of the Closing will be free and clear of any and all liens,
rights of offsets, recoupment, claims, interests, charges and encumbrances
therein, thereon and/or thereagainst of whatever kind, type, nature, or
description including, without limitation, any lien, security interest, pledge,
hypothecation encumbrance or other charge, interest or claim (including. but not
limited to, any "claim" as defined in Section 101(5) of the Bankruptcy Code) in,
against or with respect to the WBNI Shares, having arisen, existed or accrued
prior to and through the Closing, whether direct or indirect, absolute or
contingent, xxxxxx or inchoate, fixed or contingent, matured or unmatured,
liquidated or unliquidated, arising by agreement, stature or otherwise and
whether arising prior to, on or after the bankruptcy filing date.
3.25 ACCOUNTANTS CONSENTS. WBNI will obtain the consent of its
current accountant to permit the use of applicable audited financial statements
of WBNI to be included in any registration statement WBNI or its successor and
assigns may file.
3.26 VOTING REQUIREMENTS. Stockholder approval for this transaction
has been obtained pursuant to consent of stockholders in lieu of special
meeting.
3.27 ANTI TAKEOVER PLAN. WBNI does not have in effect any plan,
scheme, device, or arrangement, commonly known as a "poison pill" or
"anti-takeover" plan. No other state takeover statute or similar statute or
regulation applies or purports to apply to this transaction, this Agreement or
any of the transactions contemplated by this Agreement.
ARTICLE 4
ADDITIONAL AGREEMENTS AND
POST CLOSING MATTERS
4.1 HFG/POST EXCHANGE ADJUSTMENTS. Subject to the provisions of the
second paragraph of this Section 4.1, if WBNI. Holdings and Trans-Logistics
report on a consolidated basis, earnings before interest, taxes, depreciation
and amortization ("EBITDA"), of at least $750,000 for the fiscal year ending
December 31, 2001 (the "Reporting Period") based on the findings of the
Auditor's Report (as hereinafter defined), HFG shall sell, transfer and assign
to WBNI, for no additional consideration, 117,052 shares of WBNI's common stock
(the "HFG Shares") currently issued in the name of and held by HFG. A
certificate evidencing the shares to be returned shall be duly endorsed in favor
of and delivered to WBNI within five (5) business days of the date that the
Auditors' Report is delivered to HFG (the "Adjustment Date"). However, if the
entities fail to report, on a consolidated basis, EBITDA of at least $400,000
for the Reporting Period as set forth in the Auditors' Report, WBNI shall
deliver to HFG within five (5) business days of the Adjustment Date a warrant
(the "Warrant") to purchase 78.035 shares of WBNI's common stock at
11
a per share purchase price of $.01 during the three year period following the
date of the agreement evidencing the warrant. HFG agrees that it shall reserve
the HFG Shares for transfer to WBNI during the period commencing on the date
hereof and ending on the Adjustment Date. HFG further agrees that stop transfer
instructions shall be given to WBNI's transfer agent for the purpose of
restricting the disposition of the HFG Shares until the passing of the
Adjustment Date.
The consolidated entities shall be obligated under this Section 4.1
to provide HFG with a report of the current independent auditor of
Trans-Logistics (the "Auditors' Report") setting forth the combined entities'
EBITDA for the Reporting Period assuming that the entities did not expense
during the applicable fiscal year one time charges resulting from the
acquisition of Q-Logistics, a wholly owned subsidiary of Trans-Logistics. A
determination as to whether the HFG Shares are to be transferred or the Warrant
issued in accordance with this section shall be based on the results of the
Auditors' Report. HFG shall within five days of the Adjustment Date advise WBNI
of any concerns it has over the Auditors' Report. If a concern is raised, HFG
may, as its sole expense, engage a party of its designation to confer with the
firm who prepared the Auditors' Report for the purpose of resolving all
outstanding matters. If the parties cannot reach agreement on the disputed
matters, an independent third party, agreed to by both WBNI and HFG, shall be
engaged to resolve all outstanding issues. The determination of the third party
shall be binding upon both HFG and WBNI and shall be non-appealable.
4.2 RESIGNATION OF XXXXXX XXXXXX. Upon completion of the Exchange,
Xxxxxx Xxxxxx shall resign as the sole officer and director of WBNI and Xxxxx
Xxxxxxxx shall be appointed as President and Secretary of WBNI, to serve until
his sooner death, resignation or removal from office.
4.3 APPOINTMENT OF NEW MEMBERS TO BOARD OF Directors. Upon
consummation of the Exchange, Xxxxx Xxxxxxxx will be appointed to the Board of
Directors of WBNI, to serve in such capacity until the sooner of his death,
resignation, or removal from office or until the calling of a special or annual
meeting of stockholders of WBNI at which directors are elected.
4.4 SERVICES AGREEMENT WITH HFG. Upon completion of the Exchange,
WBNI and Holdings shall enter with that certain Services Agreement with HFG, the
form of which is attached hereto as Exhibit "A".
4.5 LEGAL OPINIONS. At the Closing, WBNI shall deliver to
Trans-Logistics and the Stockholders the legal opinion of Xxxxxx & Diamond, P.C.
the form of which is attached hereto as Exhibit "B".
4.6 AGREEMENTS, SCHEDULES AND EXHIBITS. All statements contained
herein or in any schedule, certificate, exhibit, list or other document
delivered pursuant hereto or in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties for purposes of this
Agreement.
4.7 SURVIVAL OF REPRESENTATIONS. The representations and warranties
of each of the parties hereto shall survive the Closing for the period of twelve
(12) months following the Closing Date
12
(with the exception of the representation and warranty contained in Section 3.9
herein, which shall survive until the date of expiration of the applicable
statute of limitations, including, but not limited to, with respect to all tax
returns filed and any extensions thereof) and shall not be affected by any
investigation conducted by any such party in the exercise of its due diligence
prior to the consummation of the transactions contemplated herein.
ARTICLE 5
GENERAL PROVISIONS
5. 1 INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
sections and articles of this Agreement unless otherwise stated.
5.2 SEVERABILITY. If any term. Provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated and the parties shall negotiate
in good faith to modify this Agreement to preserve each party's anticipated
benefits under this Agreement.
5.3 MISCELLANEOUS. This Agreement (together with all other documents
and instruments referred to herein): (a) constitutes the entire agreement and
supersedes all other prior agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof; (b ) except as
expressly set forth herein, is not intended to confer upon any other person any
rights or remedies hereunder and (c) shall not be assigned by operation of law
or otherwise, except as may be mutually agreed upon by the parties hereto.
5.4 SEPARATE COUNSEL. Each party hereby expressly acknowledges that
it has been advised and urged to seek its own separate legal counsel for advice
with respect to this Agreement.
5.5 GOVERNING LAW This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware.
5.6 NOTICES. Any notice, demand, claim or other communication under
this Agreement shall be in writing and shall be deemed to have been given upon
the delivery, mailing or transmission thereof, as the case may be, if delivered
personally, or sent by certified mail, return receipt requested, postage
prepaid, or sent by facsimile or prepaid overnight courier to the parties at the
addresses set forth below their names on the signature pages of this Agreement
(or at such other addresses as shall be specified by the parties by like
notice). A copy of any notices shall be sent as follows:
Copies of all notices delivered to Holdings shall also he sent to:
Xxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx. Xxx Xxxx 00000
Attention: Xxx X. Xxxxx. Esq.
13
Fax No.: 000.000.0000
Copies of all notices delivered to WBNI shall also be sent to:
Xxxxxx & Diamond, P.C.
0000 Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Diamond
Fax No.: 000-000-0000
5.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, which together shall constitute a single agreement.
5.8 AMENDMENT. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all parties hereto.
5.9 PARTIES IN INTEREST: NO THIRD PARTY BENEFICIARIES: Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of an be binding upon the respective heirs,, legal
representative, successors and assigns of the parties hereto. This Agreement
shall not be deemed to confer upon any person not a party hereto any rights or
remedies hereunder.
5.10 WAIVER. No waiver by any party of any default or breach by
another party of any representation, warranty, covenant or condition contained
in this Agreement shall be deemed to be a waiver of any subsequent default or
breach by such party of the same or any other representation, warranty, covenant
or condition. No act, delay, omission or course of dealing on the part of any
party in exercising any right, power or remedy under this Agreement or at law or
in equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies. All remedies, whether at law or in equity,
shall be cumulative and the election of any one or more shall not constitute a
waiver of the right to pursue other available remedies.
5.11 EXPENSES. The parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
WBNI, INC.
By /S/ XXXXXX XXXXXX
---------------------
Xxxxxx Xxxxxx
President
000 Xxxxx Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
TRANSL HOLDINGS, INC.
By /S/ XXXXX XXXXXXXX
---------------------
Xxxxx Xxxxxxxx, President
00000 Xxxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
THE STOCKHOLDERS
----------------------------
Xxxxxxxxx Xxxxx, Stockholder
/S/ XXXXX XXXXXXXX
---------------------
Xxxxx Xxxxxxxx, Stockholder
HAL TER FINANCIAL GROUP, INC.
/S/ XXXXXXX X. XXXXXX
---------------------
Xxxxxxx X. Xxxxxx, President
0000 Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
15
SCHEDULE A
STOCK EXCHANGE AGREEMENT
NAMES OF HOLDINGS* NUMBER OF HOLDINGS* NUMBER OF WBNI
STOCKHOLDERS SHARES TO BE EXCHANGED SHARES TO BE RECEIVED
------------ ---------------------- ---------------------
Xxxxxxxxx Xxxxx 00 1,794,804
Xxxxx Xxxxxxxx 70 4,187,876
-- ---------
TOTAL 100 5,982,680
